On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-04-0179.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2011
Before Judges Lihotz and St. John.
Following a jury trial, defendant J.C. was found guilty of second-degree aggravated sexual assault, N.J.S.A. 2C:14-2b (count two); third-degree criminal sexual contact, N.J.S.A. 2C:14-3a (amended count three);*fn1 and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count five). Defendant was sentenced to an extended term, N.J.S.A. 2C:44-3(a), of eighteen-years imprisonment with nine years of parole ineligibility on count two*fn2 plus a consecutive term of eighteen-months imprisonment with nine months of parole ineligibility on count five.
Defendant appeals his conviction and sentence, raising the following points for our consideration:
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN IMPOSING AN EXTENDED TERM SENTENCE.
DEFENSE COUNSEL WAS INEFFECTIVE DUE TO HIS REFUSAL TO ALLOW DEFENDANT TO TESTIFY.
THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT TWO ESSENTIAL ELEMENTS OF SEXUAL ASSAULT AS TO AGE.
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT PHYSICAL FORCE WAS USED AGASINST B.K.
DEFENSE COUNSEL WAS NOT EFFECTIVE IN HIS OBJECTIVE DECISION TO NOT CALL ADDITIONAL WITNESSES.
THE STATE DID NOT PROVE THAT DEFENDANT WAS ACTING IN LOCO PARENTIS.
Except for correcting the degree of the offense on count three in the judgment of conviction, we affirm the judgment in all other respects.
On appeal, the record discloses the following facts and procedural history. Because defendant asserts the verdict is against the weight of evidence, we set forth the prurient details adduced at trial regarding the sexual assaults of the two victims, S.W. and B.K. S.W. was born in 1981 and was twenty-eight at the time of trial. She testified regarding the assaults upon her by defendant and certain facts relating to the incident involving B.K. Defendant began a romantic relationship with F.C., S.W.'s mother, in 1982. During her childhood years, S.W. lived with F.C. and defendant, who S.W. believed to be her father. F.C. testified that defendant "was part of [S.W.'s] life, we were all a part of her life . . . it was a family, . . . when we had Christmases and we had Thanksgiving, it was a family thing. It wasn't nothing separate, [defendant] was there for all three of the children." Also, defendant undertook some of the disciplinary obligations and other parental activities.
S.W. was approximately ten years old when defendant first entered her bedroom at night, touched her legs, and digitally penetrated her vagina. He began performing cunnilingus on S.W. when she was twelve. Although S.W. did not know how many times defendant sexually assaulted her, she stated that it happened "randomly . . . maybe 50" times, three to four times each month for three years. She did not recall telling defendant to stop, but would regularly "push away and roll over" or pretend she was asleep. The assaults stopped when S.W. was thirteen, on the summer night she told defendant to "get the F out of [her] room."
F.C. testified that she experienced problems with S.W. commencing when she turned thirteen: "[S.W.] was defiant. She's stubborn and she didn't want to listen to nothing, she wanted to go on her own." F.C. stated that S.W. would sometimes sneak out by leaving through the window in her room, and F.C. would ask defendant to bring her back home. F.C. also testified that S.W. "moved out of that room and . . . into the other room, [and] instead of her going out the window, [F.C.] would knock on the door and find boys in her bedroom that came through the window." F.C. stated that as a disciplinarian, defendant was "the hard one."
S.W. was fourteen years old when she learned, after finding child support papers from another man, defendant was not her biological father. On March 29, 1998, during an argument, S.W., then seventeen, told defendant that she knew he was not her biological father. During the argument, S.W. also called him a "child molester" and then called 9-1-1. S.W. left the house before the police arrived.
The next day, F.C. told S.W. she could live in Florida with S.W.'s aunt and B.K., her cousin. Later that day, after a Howell Township police officer called the family home, F.C. told S.W. to "tell [the officer] it didn't happen." The police report memorializing the substance of the call stated, "I then personally spoke to [S.W.] who also reassured me that there was no truth in the statement she ...